ASBCA 60581

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) UNIT Company ) ASBCA No. 60581 ) Under Contract No. W911KB-07-D-0014 ) APPEARANCE FOR THE APPELLANT: Michael A. Brain, Esq. Law Offices of Royce & Brain Anchorage, AK APPEARANCES FOR THE GOVERNMENT: Thomas J. Warren, Esq. Acting Engineer Chief Trial Attorney Carl F. Olson, Esq. Kyle B. Davis, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Alaska OPINION BY ADMINISTRATIVE JUDGE NEWSOM ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT Before the Board is the government's motion for summary judgment. Appellant, UNIT Company (UNIT), alleging defective specifications, seeks recovery of the costs incurred to design, furnish, and install piping for certain air handling and air conditioning units. In its motion, the government contends that UNIT failed to provide contractually-required notice, which failure, it asserts, bars recovery. For the reasons set forth below, we deny the motion for summary judgment. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The government awarded Task Order 0001, under Contract No. W911KB-07-D-0014 (contract), to UNIT on 11 May 2011. 1 The task order called for the construction of a battle command training center at Joint Base Elmendorf-Richardson in Alaska, for a firm-fixed price of $20,025,555.00. (Revised R4, tab 3 at 84-86) 2. The contract incorporated Federal Acquisition Regulation (FAR) 52.236-21, SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION (FEB 1997). The portion of this clause raised in the present motion is subsection (a), which states in relevant part: 1 In describing the facts, we draw justifiable inferences in favor of the non-moving party, as is required when ruling on a summary judgment motion. C/2 Inc., ASBCA Nos. 56257, 56337, 11-2 BCA iJ 34,823 at 171,353.  In case of discrepancy in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a determination shall be at its own risk and expense. (Revised R4, tab 20 at 1434, tab 23 at 5191) 3. UNIT subcontracted with Klebs Mechanical (Klebs) to perform mechanical work, including installation of air supply, distribution, ventilation, and exhaust systems. This work included installation of the air handling units (AHUs) and computer room air conditioning units (CRACs). (App. supp. R4 at 10-13; app. br., Martin aff. 112, 5) 4. The function of an AHU is to heat, cool, and filter building air. AHUs contain coils for heating or cooling. The AHU works by passing air over the coils, then pushing the heated or cooled air through ducts to the building. For this project, the AHUs contained three large coils, one for preheating, one for heating, and one for cooling. To achieve the desired temperatures in the coils, fluid was to be pumped through large-diameter supply and return pipes running from building boilers and air conditioners to the AHU coils. Piping also connected the AHUs to control assemblies in service vestibules. (App. br., Martin aff. 11 5-6) 5. The function of a CRAC is to maintain the temperature, air distribution and humidity in the network room or data center. CRACs remove hot air from these rooms. For this project, air flowed through connective piping from the CRACs to rooftop fluid coolers, which ejected the hot air outside. (App. br., Martin aff. 1 6, Klebs aff. 11 6, 9) 6. According to UNIT, the contract drawings and specifications lacked certain engineering design information that was necessary to install the AHUs and CRACs. UNIT asserts that the drawings did not show the supply and return piping for the AHUs, did not show piping detail within the service vestibules, did not show how to connect components to the coil control assemblies, did not show connections to other appurtenances, and lacked detail about piping between the CRACs and the rooftop fluid coolers. (App. br., Martin aff. 1 7, Klebs aff. 11 6, 9) 7.